House of Representatives Practice, 6th edition – HTML version

13 - Disagreements between the Houses

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Joint sitting

After a double dissolution has been granted, elections are held for both Houses. In the new Parliament the House of Representatives may again pass the proposed law which was the subject of the double dissolution with or without any amendments which have been made, suggested or agreed to by the Senate. If the Senate rejects the proposed law, passes it with amendments to which the House will not agree or fails to pass it, the Governor-General may convene a joint sitting of members of the House of Representatives and the Senate.[148]

When a joint sitting is held Members and Senators deliberate and vote together on the proposed law in the form it was last proposed by the House of Representatives. Any amendments which have been made by one House and not agreed to by the other are considered and, if affirmed by an absolute majority of the total members of both Houses, are taken to have been carried.[149] The proposed law as a whole is voted on by all members of both Houses and if it is affirmed by an absolute majority then it shall be taken to have been duly passed by both Houses of Parliament and is presented to the Governor-General for assent.[150]

The 1974 joint sitting

Only one such joint sitting has been held and this followed the 1974 double dissolution. When the 29th Parliament sat, following the double dissolution and election of 1974, the six proposed laws which were the subject of the double dissolution were again passed by the House of Representatives and again rejected by the Senate.[151]

Following the Senate rejection, the Governor-General, on the advice of the Government, issued a proclamation on 30 July 1974 which referred to the double dissolution, listed the six proposed laws in question and stated that, since the dissolution and election, the conditions upon which the Governor-General was empowered to convene a joint sitting had been fulfilled in respect of each of the proposed laws. The Governor-General by the proclamation convened a joint sitting commencing in the House of Representatives Chamber at 10.30 a.m. on 6 August 1974. The proclamation provided that Members ‘may deliberate and shall vote together upon each of the said proposed laws as last proposed by the House of Representatives’ and that all Members of the Senate and the House were ‘required to give their attendance accordingly’.[152]

The Constitution provides for each House to make rules for the order and conduct of business either separately or jointly with the other House.[153] At the time[154] the standing orders of the Houses contained only two standing orders applying to a joint sitting, namely:

II. The Members present at the joint sitting, under section 57 of the Constitution, shall appoint by ballot a Member to preside, and until such appointment the Clerk of the Senate shall act as chairman.

III. The Member chosen to preside shall present to the Governor-General for the Royal Assent any proposed law duly passed at such joint sitting.

It was therefore necessary that special rules for the joint sitting be drawn up. Following discussions between the leaders and staff of the two Houses rules were adopted by both Houses on 1 August 1974.[155] In addition certain legislation touching on proceedings in Parliament was amended to cover the joint sitting.[156]

On 31 July the House resolved:

…that it be a rule and order of the House of Representatives that, at a joint sitting with the Senate, the proceedings are proceedings in Parliament, and that the powers, privileges and immunities of Members of this House shall, mutatis mutandis, be those relating to a sitting of this House.[157]

This resolution is considered to have continuing effect in respect of future joint sittings as far as the House of Representatives is concerned.

The joint sitting commenced at 10.30 a.m. on 6 August 1974 in the House of Representatives Chamber.[158] The Governor-General’s proclamation convening the joint sitting was read by the Clerk of the Senate (Mr J. R. Odgers). The Clerk of the Senate then proceeded to conduct proceedings for the appointment of Chairman. The Speaker of the House (Mr J. F. Cope) being the only Member proposed, was accordingly declared appointed as Chairman and was conducted to the Chair by the Leader of the House (Mr F. M. Daly) and the Manager of Government Business in the Senate (Senator D. McClelland).

The Chairman read prayers and, after making a statement on the constitutional significance of the joint sitting, called on the first proposed law. The question put to the joint sitting was ‘That the proposed law be affirmed’. The Commonwealth Electoral Act (No. 2), Senate (Representation of Territories) Act and the Representation Act were affirmed by an absolute majority on 6 August 1974 and received assent on 7 August. The Health Insurance Commission Act, Health Insurance Act and Petroleum and Minerals Authority Act were affirmed by an absolute majority on 7 August and received assent on 8 August.

All Members of both Houses attended the sitting on each day, a total of 66 members participating in the debates. Each of the proposed laws was affirmed by an absolute majority, as is required by the Constitution.

On 7 August, before consideration commenced on the sixth proposed law, the Member for Mackellar (Mr Wentworth) moved that so much of the standing orders be suspended as would prevent him moving forthwith:

That this joint sitting of the Houses should not be finally adjourned until either it has adequately discussed the present economic and industrial situation in Australia, or else the Government has indicated that both Houses will meet next week to discuss these matters.

The Chairman ruled that:

The Proclamation by the Governor-General on 30 July 1974 convened a joint sitting of the Members of the Senate and of the House of Representatives for the purpose of deliberating and voting upon each of 6 proposed laws and, in his [that is the Chairman’s] opinion, neither section 57 of the Constitution nor the Proclamation authorised the consideration of any other matters by the joint sitting—

and ruled the motion out of order. Mr Wentworth moved dissent from the Chairman’s ruling, the motion being negatived on the voices after the closure of the debate was agreed to.

Later, Mr McMahon, Member for Lowe, raised a point of order ‘referring to the judgment of the Chief Justice on the challenge to the joint sitting’. He was immediately ruled out of order by the Chairman who stated that a point of order could relate only to the standing orders and the rules the Houses had adopted governing the joint sitting. Mr McMahon claimed that action was being taken on proclamations the Chief Justice had said were improper, but the Chair called on the next item of business and the matter was not pursued.

During the joint sitting Members of the House of Representatives were called by electoral division and name, Senators by name, Ministers by portfolio and name, and Leaders of the Opposition by office and name.

High Court cases relating to the joint sitting

The validity of the joint sitting and the validity of certain laws passed by the joint sitting were the subject of a number of cases brought before the High Court.[159]

The Governor-General’s proclamation of Tuesday, 30 July 1974, convened the joint sitting for 10.30 a.m. the following Tuesday, 6 August. On Thursday, 1 August, a writ was filed in the High Court by two opposition Senators, Senator the Hon. Sir Magnus Cormack and Senator James Webster, challenging the legality of the joint sitting and seeking an interlocutory injunction to prevent it being held.[160]

On 2 August writs were served on the Speaker (Mr J. F. Cope), the President of the Senate (Senator J. O’Byrne), the Prime Minister (Mr E. G. Whitlam), the Clerk of the House (Mr N. J. Parkes), the Attorney-General (Senator L. Murphy), the Governor-General (Sir John Kerr) and the Clerk of the Senate (Mr J. R. Odgers) to appear before the High Court of Australia. On 2 August the Speaker informed the House that writs had been served on the Clerk and himself and presented certain documents.[161] The High Court considered the matter on Friday, 2 August, and Monday, 5 August, but refused to grant the interlocutory injunction sought to prevent the joint sitting being held.

The suit principally sought to have the High Court:

  • invalidate the proclamation for the joint sitting;
  • declare that the joint sitting was not empowered to vote on all the proposed laws referred to in the proclamation;
  • declare that the joint sitting could only vote on one proposed law; and
  • declare that the Petroleum and Minerals Authority Bill did not fulfil the requirements of section 57 and could not be voted upon at the joint sitting.

The case was heard before Chief Justice Barwick and Justices McTiernan, Menzies, Gibbs, Stephen and Mason. The Court ruled that more than one proposed law could be dealt with in a double dissolution and at a joint sitting. In his judgment the Chief Justice stated that there was nothing in the section, or in the evident reasons for its enactment, which required that only one proposed law should be so discussed and voted upon.

On the question that the listing of the six bills in the joint sitting proclamation went beyond what was required by the Constitution, the Chief Justice stated that it was no part of the Governor-General’s function to determine what should occur at a joint sitting or to direct what proposals might be discussed or not discussed at such a sitting or what was the purpose of the joint sitting; that was determined by the Constitution in the third paragraph of section 57.

Menzies J stated that the power given to the Governor-General was simply to convene a joint sitting and it was not for the Governor-General to prescribe what may occur at such sitting.

McTiernan J was of the opinion that neither proclamation (that is, double dissolution and joint sitting) upon its proper construction contravened section 57. He saw no reason for declaring either of the proclamations to be invalid.

Gibbs J stated that, in his opinion, the Governor-General had no power to direct the members present at the joint sitting upon what proposed laws they may deliberate and should vote, but that the inclusion of a direction of that kind did not affect the validity of the proclamation assuming it to be otherwise valid.

Stephen J stated that the section itself prescribed what was to be the business of the joint sitting and the terms of the proclamation could not affect this one way or another.

Mason J stated that, if the proclamation was effective to convene a joint sitting, ‘as I happen to think it is’, so long as there was at least one proposed law which answered the description contained in section 57, it did not follow that it had conclusive effect so far as its recitals asserted that, in relation to each of the six bills, the provisions of the section had been satisfied.

In view of the doubt as to whether or not the proposed law(s) should be listed in the proclamation, should any future proclamation convening a joint sitting not list the proposed laws to be considered, it may be necessary to devise a procedure to initiate the consideration of the proposed laws. This could be done by motion by a Minister, and for this purpose some suitable provision may be necessary in the rules.

On the question of whether the Petroleum and Minerals Authority Bill had fulfilled the requirements of section 57, the Court ruled that a declaration should not be made in the interlocutory proceedings but that once the proposed law had been affirmed at a joint sitting it would then be appropriate for the Court to pronounce on its validity.

The validity of some of the bills passed at the joint sitting was in fact later challenged by several of the State Governments. In one judgment the High Court ruled by a majority decision that the Petroleum and Minerals Authority Bill was not one within the meaning and scope of section 57 of the Constitution upon which the joint sitting could properly deliberate and vote, and that it was not a valid law of the Commonwealth. The Court held that the interval of three months had to be computed from the date of rejection of or failure to pass the bill by the Senate and not from the date of the passing of the bill by the House. The Court also held that the Senate had not ‘failed to pass’ the bill on 13 December 1973.[162]

In a separate judgment the High Court ruled by a majority decision that the Commonwealth Electoral Act (No. 2) 1973, the Senate (Representation of Territories) Act 1973 and the Representation Act 1973 were Acts duly passed by both Houses of the Parliament within the meaning of section 57 of the Constitution and that the Senate (Representation of Territories) Act 1973 was not invalid, in whole or in part, as being beyond the legislative powers of the Commonwealth Parliament.[163]

148. Constitution, s. 57.
149. In respect of the 1974 joint sitting, bills were not amended by either House prior to the joint sitting.
150. Constitution, s. 57.
151. See Appendix 22 of 1st edn.
152. Gazette S62B (30.7.1974).
153. Constitution, s. 50.
154. There were formerly three joint standing orders (standing orders applicable to both Houses). These were discarded by the Senate in 1989 and by the House in 2004.
155. VP 1974–75/118–21; J 1974–75/117–20. See Rules for joint sittings (following Appendix 25).
156. The three amending Acts concerned were assented to on 1 August 1974, VP 1974–75/121. Details of the amendments to the Evidence Act, Parliamentary Papers Act and Parliamentary Proceedings Broadcasting Act, and related determinations, are set out at pages 473–4 of the 5th edition.
157. VP 1974–75/106. The Senate passed a similar resolution on 1 August, J 1974–75/117.
158. The record of the joint sitting can be found in the following parliamentary records: (a) Minutes of Proceedings of Joint Sitting, 6–7 August 1974, and (b) H.R. Deb. (6 and 7.8.1974) 1–175.
159. Many aspects of the wording of section 57 were discussed.
160. Cormack v. Cope (1974) 131 CLR 432.
161. VP 1974–75/127.
162. Victoria v. Commonwealth (1975) 134 CLR 81 (Petroleum and Minerals Authority Case).
163. Western Australia v. Commonwealth (1975) 134 CLR 201 (Territories Representation Case); see also Queensland v. Commonwealth (1977) 139 CLR 585.